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Does your employee handbook address discrimination based on sexual orientation? What does federal law say, and are discrimination claims based on sexual orientation actionable? Confusion abounds, and employers around the country are struggling to find their way through a deep forest of emerging federal case law relating to LGBT issues that establishes only one thing clearly—that the judiciary's compass is still spinning.

On March 10, the 11th U.S. Circuit Court of Appeals (which has jurisdiction of federal claims brought in Alabama, Florida and Georgia) held in Evans v. Georgia Regional Hospital that Title VII of the Civil Rights Act of 1964's protections against discrimination "because of" sex does not extend to cover discrimination claims brought on the basis of sexual orientation. In so doing, the court placed itself in direct opposition to the position staked out by the Equal Employment Opportunity Commission (EEOC), that "sexual orientation is inherently a 'sex-based consideration'" to which Title VII extends. The EEOC's position has resonated with, and been adopted by, several lower federal courts recently. Nevertheless, the 11th Circuit decision adheres to a perceived distinction between discrimination based on gender stereotyping and discrimination based solely on gender orientation. Confused? You should be.

For perspective, in 1989, the U.S. Supreme Court decided Price Waterhouse v. Hopkins and held that Title VII prohibited discrimination based on gender stereotyping. The case involved a female senior manager at the accounting firm who claimed she was not promoted to the partnership because she was not "feminine enough." Since then, courts around the country have upheld the notion that discrimination based on "appearance" and failure to conform to ideals of what a woman (or a man) should be (gender stereotyping), is discrimination "because of" sex which is prohibited under Title VII. Since then, transgender, gay and lesbian employees have successfully applied the rationale of the Supreme Court to bring their own cases of discrimination based on gender stereotyping.

The 11th Circuit's recent holding, however, refused to recognize that a woman's assertion that she was discriminated against based on her sexual orientation was a claim necessarily rooted in gender stereotyping that was prohibited under Title VII. In essence, the majority of the court expressed the opinion that it was not enough for the plaintiff to claim that she had endured workplace discrimination because of her sexual orientation to invoke the protection of Title VII. The court signaled that the woman's behavior as a gay woman, not simply her status as one, was needed to support her claim.

The dissenting opinion argues that the distinction is meaningless and there is movement afoot in other circuit courts around the country that might prove the dissent in Evans correct.

On Nov. 30, 2016, the 7th U.S. Circuit Court of Appeals in Hivey v. Ivy Tech Community College vacated its own prior ruling by three judges in the case to allow the case to be re-heard by all twelve of the current sitting judges. Like the other Circuit Courts that have considered the issue, the original decision in the 7th Circuit held that Title VII does not protect against discrimination based on sexual orientation. The fact that the case is to be re-decided suggests the very real possibility of a different outcome.

Even more recently, on Jan. 20, the U.S. 2nd Circuit Court of Appeals heard oral argument in Boutillier v. Hartford Public School. In that case, the lower federal district court (sitting in Connecticut) held that Title VII does prohibit discrimination based on an individual's sexual orientation.

Given the recent activity, there is reason to believe that a split in the federal appeals courts could develop and ultimately place the issue squarely before the Supreme Court for decision. Given the make-up of that court, and a recent judicial confirmation, the compass on sexual orientation under Title VII may spin for some time to come. Contact NGC for advice on how to update your employee handbook to stay current with ever-changing state and federal law.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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